24 Ind. L. Rev. 65 (1990-1991)
Expectations, Loss Distribution and Commercial Impracticability

handle is hein.journals/indilr24 and id is 77 raw text is: Expectations, Loss Distribution and Commercial
The doctrine of commercial impracticability is easy to state and
difficult to apply. Simply stated, the doctrine of commercial impracti-
cability excuses a seller from timely delivery of goods contracted for,
where his performance has become commercially impracticable because
of unforeseen supervening circumstances not within the contemplation
of the parties at the time of contracting.' The doctrine is difficult to
apply because of the vague statutory language of section 2-615 of the
Uniform Commercial Code.2 Two of the crucial terms, basic assump-
tions and impracticable, are undefined by the statute and provide
no standards. Nor do the accompanying comments. In fact, the official
comment states that section 2-615 deliberately refrains from any effort
* Assistant Professor of Law, University of San Diego School of Law. B.A.,
Kalamazoo College, 1976; M.A., University of Chicago, 1978; Ph.D., University of Chicago,
1984; J.D., Yale Law School, 1988.
I thank Larry Alexander, Jules Coleman, and Scott Widen for helpful discussions. I am
particularly grateful to Alan Schwartz for discussion and comments on a previous draft.
Brian. Paton provided valuable research assistance. The usual disclaimer applies.
1. U.C.C. § 2-615 comment 1 (1987).
2. U.C.C. § 2-615. Excuse by Failure of Presupposed Conditions.
Except so far as a seller may have assumed a greater obligation and subject
to the preceding section on substituted performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller who
complies with paragraphs (b) and (c) is not a breach of his duty under
a contract for sale if performance as agreed has been made impracticable
by the occurrence of a contingency the non-occurrence of which was
a basic assumption on which the contract was made or by compliance
in good faith with any applicable foreign or domestic governmental
regulation or order whether or not it later proves to be invalid.
(b) Where the causes mentioned in paragraph (a) affect only a part of
the seller's capacity to perform, he must allocate production and
deliveries among his customers but may at his option include regular
customers not then under contract as well as his own requirements
for further manufacture. He may so allocate in any manner which is
fair and reasonable.
(c) The seller must notify the buyer seasonably that there will be delay
or non-delivery and, when allocation is required under paragraph (b),
of the estimated quota thus made available for the buyer.
U.C.C. § 2-615.

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